DRAFT LAW ON
МЕDIATION
I. GENERAL PROVISIONS
Article 1
This law shall regulate the rules of mediation procedures (hereinafter: mediation) in disputes and in particular: property - legal relations between physical persons and legal entities; commercial and family; labour and other civil law relations, administrative and criminal procedures, in which the parties act freely, unless the law stipulates exclusive authority of a court or other relevant authority.
The provisions of this Law shall apply notwithstanding whether mediation is executed prior or after opening the procedure for the settlement of disputes, unless otherwise stipulated by the Law.
The provisions of
this Law shall not apply to employment contract termination and minimum wage
disbursal disputes.
Article 2
Mediation is any procedure, notwithstanding its name, whereby the parties wish to settle their dispute through one or more mediators assisting the parties to reach an agreement.
Mediators shall not be authorized to impose a binding agreement on the parties.
Article 3
Mediation is always carried out on the basis of the explicit agreement between the parties.
Equal and Impartial Treatment of Parties
In a mediation
procedure, the parties shall enjoy equal rights.
In a mediation procedure, the parties shall be treated equally.
Mediators shall act
independently and impartially.
Article
5
In a mediation
procedure, the public shall be excluded.
Parties, their legal
representation and proxies participate in the mediation procedure with the
permission of the parties and third parties.
All third parties who
participate in a mediation procedure shall respect the principle of
confidentiality of mediation procedures.
Article
6
All information,
proposals and statements related to the mediation procedure shall be
confidential unless otherwise agreed by the parties, except where disclosure is
required under the law or for the purposes of implementation or enforcement of
a settlement agreement, as well as when the public interest requires it.
Information,
proposals and statements disclosed in the mediation procedure, exclusively for
the purpose of settlement cannot be used in legal, arbitration or other
procedures.
The court shall
reject the information, proposals or statements under paragraph 2 above if
presented.
The provisions under paragraphs 1 and 2 shall
apply notwithstanding whether the legal, arbitration or other procedure relates
to the disputable relation which is the predicate of mediation procedure.
Article 7
Mediation procedures shall be
considered urgent.
III. MEDIATION PROCEDURE
Article
8
Unless otherwise specified in an agreement by
the parties, the mediation procedure shall be opened with the adoption of the
proposal for the initiation of the procedure.
Should the party having received the proposal for mediation fail to declare in favor of the mediation procedure within 15 days from the date of receipt of the proposal, or within the period specified in the proposal, the
proposal shall be considered rejected.
Implementation of procedure
Article 9
The parties may agree condition for the implementation of the mediation procedure.
If
the parties do not reach the agreement on condition for the implementation of the procedure, the mediator shall conduct the procedure under conditions he/she deems suitable, taking into account the
circumstances of the disputable relation and the interests of the
parties, and respecting the principle of urgency.
The
mediator may interview the parties jointly of individually, and, with
the consent of the party, may convey and present the proposals and positions on relevant issues to the other party.
The mediator may propose possible options for the settlement of the
dispute, but shall not propose the final settlement solution.
Closure of procedure
Article 10
The mediation
procedure shall be closed:
1.
with the parties reaching an agreement;
2.
with the decision of the mediator to close the procedure, upon consultations with the parities,if he/she deems that the continuance is not
justified;
3.
with the statement of a party on withdrawing from the procedure.
Legal expiration and preclusions
Article 11
Opening of the mediation procedure shall not interrupt the legal expiration of the claim.
Opening of the mediation procedure shall not influence the legal timelines for the the instigation and
conducting of the
relevant procedure, except in cases when the mediation is a legal precondition for the
instigation of such procedure under separate regulations.
Instruction
to Mediation
Article 12
Should the parties propose by a mutual agreement or should the court find that the dispute can be settled successfully through mediation, the parties shall be instructed to mediation.
The court shall instruct the parties to a
mediation procedure upon the receipt of the defendant’s statement or after the
preliminary hearing is held.
The court may
instruct the parties to mediation, at a later point in the course of a legal
procedure, prior to its legally valid closure.
Duration of Procedure
Article 13
A mediation procedure shall not exceed 30 (thirty) days.
The court or other relevant authority may extend
the mediation procedure duration due to a valid reason, at the request of the
mediator or the parties.
Mediation
in Appeal Procedure
Article
14
In an appeal procedure, the reporting judge shall, at the proposal of the parties and with their agreement, instruct the parties to a mediation procedure, giving a deadline of 30 (thirty) days for the termination of this procedure, and suspend the decision on appeal.
A mediator
in the appeal procedure shall be a judge.
Continuation
of Appeal Procedure
Article
15
If a mediation procedure has not been successful, within 30 (thirty) days from the date of instruction, the appeal procedure shall be continued.
The effectiveness of the agreement reached in the mediation procedure, depends on the will of the parties and the form in which the agreement was made.
The mediator shall inform the parties about the implementations of the settlement agreement reached and on the means of fulfilling the obligations ensuing from such agreement.
At the request of the parties, the mediator shall take part in the formulation and drafting of the settlement agreement.
The settlement agreement reached during the mediation procedure, through the mutual compromise of the parties, closed before the start of a legal procedure or in the course of such procedure, shall have the character of an extrajudicial settlement, provided that it is made in writing and that it is not contradictory to the public order.
The mediator shall promptly inform the court before which the legal procedure had been filed about the settlement agreement reached in the mediation procedure.
The settlement agreement reached between the parties in the mediation procedure shall have the power of a court settlement, provided the judge files it in the court registry, after he finds that it complies with the public interest.
If the settlement agreement is not reached in the mediation procedure due to disagreement about legal issues, the parties may close a written agreement about the factual issues. Such agreement shall bind them in further proceedings, if certified by the mediator or other relevant authority and provided the parties consent to the disclosure of the information in the agreement.
Appropriate Application of the Law on Obligations and the Law on Legal Procedure
Article 17
The negotiations, effectiveness and termination of settlement agreements reached as a result of the mediation procedure shall be governed by the provisions of the Law on Obligations, regulating extrajudicial settlements, and the Law on Legal Procedure, regulating judicial settlements.
General Provisions
Article 18
A mediator is a third-party neutral person who mediates between two parties for the purpose of settling their dispute in compliance with the mediation principles.
Judges, lawyers and other prominent experts from different fields of
expertise may act as mediators depending on the type of disputes in which they
mediate.
List of Mediators
Article 19
The president of the court, i.e. head of other relevant authority shall appoint the mediator from amongst the prominent professionals (judges, lawyers, etc.) fulfilloing the conditions for mediation stipulated by this Law and shall include him in the List of Mediators (hereinafter: the List) .
Mediators shall be appointed and included in the List at the request of the interested party, which
could be submitted also through the mediators organization.
The president of the court, i.e. head of other relevant authority,
shall notify the mediators organization about the
inclusion of mediators in the List.
The
maintenance of the List shall e regulated in greater detail by the Minister of Justice.
Requirements for Conducting Mediation
Article 20
Mediator must fulfil the following requirements:
1. A university graduate;
2. Minimum five years relevant work experience in dispute and conflict settlements;
3. Undergone training programme for mediators;
4. Registered in the List;
5. Not under investigation an with a clean criminal record;
6. Possess integrity of performing mediation role.
Exceptionally, a mediator may be also a person not fulfilling all the conditions under Para. 1 Items 1 – 4 above, if he/she has special experience and knowledge in the field of mediation.
In disputes with a foreign element, a mediator can be a foreign citizen, provided that he is authorized to perform mediation internationally, with consent of the parties.
The
program for the training of mediators shall be specified by the Minister of
Justice.
Appointment of Mediators to Specific Cases
Article 21
In case of mediation prior to opening court or other procedure, the parties shall agree on a mediator or shall address the president of the court, i.e. head of other relevant authority, with the request to appoint a mediator for the List.
If the mediation is conducted after a court or some other procedure
is opened, the parties shall agree on a
mediator from the List.
Should the parties fail to reach the agreement, the president of the court, i.e. head of other relevant authority, shall appoint a mediator from the List in the listed order.
Appointment of mediators shall be regulated in greater detail by the
Minister of Justice.
Exclusion of Mediators
Article 22
A mediator must be excluded from
the mediation procedure in case the mediator is the presiding judge, arbitrator
or the court for the same parties in other dispute, or is the person who acts
or has acted on behalf of the parties in other dispute.
A mediator cannot be a lawyer representing or having represented the parties in the procedure, or who is or used to be their legal representative or guardian.
Exemption of Mediators
Article 23
A mediator must be exempted from
the mediation procedure in case he has personal interests, or in other
circumstances raising doubts about his/her impartiality.
A mediator shall inform the parties about all the circumstances that
may raise doubts about his/her impartiality.
A mediator may conduct the mediation procedure also in the case referred to in Para. 1 above, provided that the parties, after they have been informed about the existence of such circumstances, mutually agree that he/she may conduct the mediation.
Appropriate Application of Law
Article 24
The exclusion and exemption of mediators shall be governed by the provisions of the separate laws on exclusion, i.e. exemption.
Mediators’ Obligations
Article 25
A mediator shall conduct and conclude the mediation procedure without unnecessary delays.
A mediator cannot impose a solution on the parties.
A mediator shall conduct mediation in a neutral way, without any prejudices regarding the parties and predicates to a dispute.
A mediator cannot make any promises and shall not guarantee the specific outcome of the procedure.
Mediators’ Rights
Article 26
A mediator has the right to be informed about the circumstances of a disputable relation.
The parties shall present to the mediator all necessary information and their view of the disputable relation.
The parties shall present to the mediator the evidence necessary for the evaluation of the compliance of a settlement agreement with the public interest.
A mediator shall be entitled to reimbursement of expenses.
Mediators’ Liability
Article 27
A mediator shall be held liable for any damage caused to the parties by his illegal actions, in compliance with the general rules on liability for damages.
The parties may agree on the settlement of the
costs of mediation.
The parties shall advance the costs
of settlement in equal parts.
Final
Cost Settlement
Article
30
When the mediation procedure
is completed with a final settlement agreement, each of the parties shall bear
their own expenses and share the mediator’s expenses in equal parts, unless
otherwise stipulated in the agreement.
When mediation has not been
successful, and the mediation was required in the procedure of the settlement
of disputable relations, the decision on covering mediation expenses shall be
made in litigation or other procedure, along with the final decision.
When mediation has not been
successful, and the parties instigated the mediation procedure prior to the
procedure of the settlement of disputable relations, each of the parties shall bear their own expenses and
share the mediator’s expenses in equal parts.
The expenses shall be
determined in accordance with the legal fee rates.
VII. TRANSITIONAL AND FINAL PROVISIONS
Article 31
Within 90 days from the date of this Law coming into effect, the Minister of Justice shall adopt secondary
legislation on the implementation thereof.
Article 32
This Law shall enter into
force 8 days from the date of its publication in the “Official Gazette” and its
enforcement shall be deferred for 90 days.